TRIBAL MEMBERSHIP AND INDIAN NATIONHOOD

Historically, federal, state, and tribal governments have struggled mightily with this key point.5 Moreover, the federal government played a key role in developing the membership criteria for many hundreds of tribes, leading to allegations that part of the government's interest was literally to...

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Bibliographic Details
Published in:American Indian law review 2012-01, Vol.37 (1), p.1-17
Main Author: Fletcher, Matthew L.M.
Format: Article
Language:English
Subjects:
Ambiguity
Constitutional law
Cultural identity
Exegesis & hermeneutics
Federal law
Genealogy
Government
Ideology
Jurisdiction
Law
Literary devices
Logic
Modems
Nationhood
Native Americans
Native North Americans
Race
Recognition
Treaties
Tribal land
Tribal sovereignty
Tribalism
Visual impairment
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Summary:Historically, federal, state, and tribal governments have struggled mightily with this key point.5 Moreover, the federal government played a key role in developing the membership criteria for many hundreds of tribes, leading to allegations that part of the government's interest was literally to breed Indians out of legal existence.6 Tribes with stringent membership rules limit their own population growth and, in some extreme instances, could shrink their membership down to nothingness, just as federal bureaucrats and policymakers may have envisioned decades or centuries ago. [...]federal Indian law's recognition of the anomalous character of Indian tribes as race-based entities7 appears even more anomalous and possibly illegitimate in the modem era of American constitutional law that strives to achieve the conflicting values of race and color-blindness.8 Commentators and courts struggle with the evolving paradox of government programs and legal doctrines that exist for the benefit (and occasionally to the detriment) of persons of a certain race and ethnicity.9 What federal and state government programs and mies, applicable only to Indian tribes and individual Indians, are constitutionally viable in the current era of American constitutional law? The second is the Supreme Court's decision in Carcieri v. Salazar}5 A. Membership and Tribalism Indian tribes tend to define tribal membership according to either (a) blood quantum, or (b) lineal descendancy. B. Indian Tribes as Historical Actors - The Carcieri Effect The second crack developing in the bright line federal recognition rule is historical in nature.
ISSN:0094-002X
1930-7918